LYNDA GAIL BREWER AND THERESA K. EVANS, PETITIONERS V. UNITED
STATES OF AMERICA
No. 89-7870
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-24) is reported at
899 F.2d 503.
JURISDICTION
The judgment of the court of appeals was entered on March 29, 1990.
The petition for a writ of certiorari was filed on June 26, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the district court improperly departed downward from the
applicable Sentencing Guidelines ranges in sentencing petitioners.
STATEMENT
Upon their guilty pleas in the United States District Court for the
Middle District of Tennessee, petitioners were each convicted of bank
embezzlement, in violation of 18 U.S.C. 656. Both petitioners were
sentenced to three years' probation, with the first 90 days to be
served under limited home detention. Both petitioners were also
ordered to perform 200 hours of community service work during the
first year of probation. On the government's appeal of the sentences,
the court of appeals remanded for resentencing.
1. Petitioners were tellers of the Wayne County Bank in Waynesboro,
Tennessee, a small community of less than 2,500 people. Over a
10-month period, petitioner Brewer embezzled $9,000 from the bank, and
petitioner Evans embezzled $19,000. In an attempt to conceal their
scheme, they periodically adjusted the bank vault balance sheets and
covered for each other. An unannounced audit of the bank in August
1988, however, revealed that $28,000 was missing. Shortly thereafter,
petitioners voluntarily admitted to the bank president that they had
taken the money, and they paid restitution to the bank. Pet. App. 2.
Both petitioners subsequently pleaded guilty. Their plea
agreements specified that, if the district court deemed incarceration
appropriate, each would be "sentenced to a term which is the lowest
range of the Federal Sentencing Guidelines which term shall in no
event exceed six (6) months."
2. On February 28, 1989, petitioners were sentenced pursuant to the
Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C.
991-998. The district court found that the Sentencing Guidelines
range for each petitioner was 6-12 months' imprisonment, based on a
total offense level of 10 and a criminal history category of I. /1/
Under Guidelines Section 5C2.1(c) and the terms of the plea
agreements, the district court had three sentencing options for each
petitioner: (1) six months' imprisonment; (2) three months'
imprisonment and three months in a halfway house, with a period of
supervised release; or (3) six months in a halfway house. Pet. App.
3.
The district court departed downward from the Guidelines ranges for
each petitioner. It sentenced both petitioners to three years'
probation, with the first 90 days to be served under limited home
detention, and it ordered both of them to perform 200 hours of
community service work during the first year of probation. The court
justified its departures based on several factors: (1) the degree of
community support for petitioners; (2) the degree of remorse shown by
petitioners; (3) the promptness with which petitioners made
restitution; (4) petitioners' histories and continued community
involvement; (5) the aberrant nature of petitioners' criminal
activity; (6) the fact that both petitioners had young children and
were needed at home; (7) the bank president's recommendation of
clemency; and (8) the court's belief that incarceration would serve
no useful purpose. Pet. App. 3-4.
3. The court of appeals remanded for resentencing. Pet. App. 1-16.
The majority concluded that the factors relied upon by the district
court to justify its departures were adequately taken into
consideration by the Sentencing Commission in formulating the
Guidelines. Because none of the factors were present to an unusual or
extraordinary degree, the majority held, those factors did not justify
a departure from the Guidelines range under 18 U.S.C. 3553(b). Pet.
App. 9-14.
Judge Merritt dissented. Pet. App. 17-24. In his view, the
district court's downward departures were proper because the
Sentencing Guidelines did not take into account the full panoply of
facts traditionally considered in mitigation at sentencing. Id. at
17-20. Relying on 28 U.S.C. 994(j), Judge Merritt concluded that
petitioners' first offenses were not sufficiently serious to justify
imprisonment. Pet. App. 22-23. In addition, he criticized the
majority for failing to give due deference to the district court's
application of the Guidelines to the facts under 18 U.S.C. 3742(e).
Pet. App. 20-22. Finally, Judge Merritt complained that the
majority's decision would make judicial administration in Guidelines
cases more onerous at the trial and appellate levels. Id. at 23-24.
ARGUMENT
1. Petitioners first contend that the court of appeals erroneously
concluded that the factors on which the district court relied did not
justify the downward departures from the Guidelines range. Pet.
18-21.
Under 18 U.S.C. 3553(a)(4) and (b), a district court must impose a
sentence of the kind and within the range recommended by the
Sentencing Commission in the applicable Sentencing Guidelines unless
the court finds an aggravating or mitigating circumstance of a kind or
to a degree not adequately considered by the Commission that should
result in a different sentence. Moreover, in determining whether a
circumstance was adequately taken into consideration, the district
court may consider only the Sentencing Guidelines, policy statements,
and official commentary of the Sentencing Commission. 18 U.S.C.
3553(b). When the Sentencing Guidelines take into consideration an
aggravating or mitigating factor, the Sentencing Commission has
explained that a departure is warranted only if that factor is present
in the case to an unusual degree. Guidelines Section 5K2.0 (Policy
Statement). /2/
Contrary to petitioners' contention, the court of appeals properly
concluded that the factors relied upon by the district court to
justify its departures in this case had been adequately taken into
account in the Sentencing Guidelines. The Sentencing Guidelines
specifically state that a defendant's sex and socioeconomic status
"are not relevant in the determination of a sentence." Guidelines
Section 5H1.10 (Policy Statement). They also provide that a
defendant's age, education and vocational skills, previous employment
record, family ties and responsibilities, and community ties are "not
ordinarily relevant in determining whether a sentence should be
outside the guidelines." Guidelines Sections 5H1.1, 5H1.2, 5H1.5,
5H1.6 (Policy Statements). Because none of those factors was present
to an unusual degree in this case, the court of appeals concluded,
Pet. App. 9-11, they could not serve to justify the district court's
downward departures from the Guidelines range. See, e.g., United
States v. Pozzy, 902 F.2d 133, 139 (1st Cir. 1990); United States v.
Carey, 895 F.2d 318, 324-326 (7th Cir. 1990); United States v. Daly,
883 F.2d 313, 319 (4th Cir.), cert. denied, 110 S. Ct. 2622 (1989).
/3/
The court of appeals likewise properly concluded that the other
factors relied upon by the district court had been adequately taken
into account in the Sentencing Guidelines. As the court of appeals
explained, Pet. App. 11-12, petitioners' degree of remorse and prompt
payment of restitution were taken into consideration by giving each of
them a two-level reduction in the offense level for acceptance of
responsibility under Guidelines Section 3E1.1(a). See United States
v. Carey, 895 F.2d at 323. Cf. United States v. Bolden, 889 F.2d
1336, 1340-1341 (4th Cir. 1989). The court of appeals also correctly
noted, Pet. App. 12, that petitioners' prior good records were taken
into account by their placement in the lowest criminal history
category. United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1990);
United States v. Williams, 891 F.2d 962, 965-966 (1st Cir. 1989). See
United States v. Carey, 895 F.2d at 324-325. Finally, as the court of
appeals observed, Pet. App. 12-13, "(i)t is simply not the sentencing
judge's prerogative if he disagrees with the guideline concepts to
determine whether incarceration would serve a useful purpose when the
guidelines expressly provide for a minimum jail term." /4/
2. Petitioners also claim that the court of appeals applied an
improper standard of review in assessing the district court's decision
to depart from the Guidelines range. Pet. 21-23.
The statute establishing appellate review of sentences provides
that the court of appeals "shall give due deference to the district
court's application of the guidelines to the facts." 18 U.S.C.
3742(e). /5/ The amount of deference due a district court depends on
the nature of the sentencing determination being reviewed. See United
States v. Daughtrey, 874 F.2d 213, 217-218 (4th Cir. 1989) (Wilkins,
J.).
The standard of review applied by the court of appeals in reviewing
the district court's departure determinations in this case is fully
consistent with the "due deference" standard of 18 U.S.C. 3742(e).
Applying its earlier decision in United States v. Joan, 883 F.2d 491,
493-496 (6th Cir. 1989), the court of appeals applied the three-step
analysis for reviewing departure decisions first articulated by the
First Circuit in United States v. Diaz-Villafane, 874 F.2d 43, 49-50,
cert. denied, 110 S. Ct. 177 (1989). Pet. App. 4-5. See also United
States v. Rodriquez, 882 F.2d 1059, 1067 (6th Cir. 1989), cert.
denied, 110 S. Ct. 1144 (1990). Under that analysis, the court of
appeals first determines as a question of law, subject to plenary
review, whether the circumstances on which the district court relied
are sufficiently "unusual" to warrant a departure from the Guidelines
range. Second, the court of appeals decides as a factual matter,
subject to review under the clearly erroneous standard, whether those
factors are present in the case. Finally, the court of appeals
determines whether the direction and degree of departure is
"reasonable," having due regard for the factors to be considered in
imposing sentence and the particular reasons cited by the district
court for the sentence.
Contrary to petitioners' contention, Pet. 21-23, the court of
appeals did not review de novo or disregard the district court's
factual findings in remanding this case for resentencing. Rather,
under the first step of its analysis the court of appeals reviewed de
novo whether the circumstances identified by the district court were
sufficiently "unusual" to warrant departure from the Guidelines range.
That determination derives directly from the requirement of 18 U.S.C.
3553(b) that the basis for a departure be an aggravating or mitigating
circumstance of a kind or to a degree not adequately taken into
consideration by the Sentencing Commission in formulating the
Guidelines. For that reason, the courts of appeals agree that that
determination is essentially a question of law subject to plenary
review. See United States v. Diaz-Villafane, 874 F.2d at 49; United
States v. Ryan, 866 F.2d 604, 610 (3d Cir. 1989); United States v.
Summers, 893 F.2d 63, 66 (4th Cir. 1990); United States v. Williams,
901 F.2d 1394, 1396 (7th Cir. 1990); United States v. Lang, 898 F.2d
1378, 1379-1380 (8th Cir. 1990); United States v. Lira-Barrazza, 897
F.2d 981, 984-985 (9th Cir. 1990); United States v. White, 893 F.2d
276, 277-278 (10th Cir. 1990); United States v. Burns, 893 F.2d 1343,
1345 (D.C. Cir. 1990). In the absence of any conflict among the
courts of appeals over the application of a plenary standard of review
to determine whether a district court relied on legally permissible
grounds for a departure under 18 U.S.C. 3553(b), review by this Court
is unwarranted.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
AUGUST 1990
/1/ The presentence report calculated petitioners' total offense
level to be 11 under the criminal livelihood provision of Guidelines
Section 4B1.3, which applies when a defendant commits an offense as a
part of a pattern of criminal conduct from which she derives a
substantial portion of her income. At the sentencing hearing,
however, the government agreed that Guidelines Section 4B1.3 does not
apply in this case. Pet. App. 2-3.
/2/ The Sentencing Commission's general policy statement regarding
departures is set forth in Guidelines Section 5K2.0, which provides in
part that:
Circumstances that may warrant departure from the guidelines
pursuant to (18 U.S.C. 3553(b)) cannot, by their very nature be
comprehensively listed and analyzed in advance. The controlling
decision as to whether and to what extent departure is warranted
can only be made by the court at the time of sentencing.
Nonetheless, the present section seeks to aid the court by
identifying some of the factors that the Commission has not been
able to fully take into account in formulating precise
guidelines. Any case may involve factors in addition to those
identified that have not been given adequate consideration.
Presence of any such factor may warrant departure from the
guidelines, under some circumstances, in the discretion of the
sentencing judge. Similarly, the court may depart from the
guidelines, even though the reason is listed elsewhere in the
guidelines (e.g., as an adjustment or specific offense
characteristic), if the court determines that, in light of the
unusual circumstances, the guideline level attached to that
factor is inadequate.
/3/ Petitioners err in relying, Pet. 19, on United States v. Big
Crow, 898 F.2d 1326 (8th Cir. 1990), to justify the departures here.
In that case, the Eighth Circuit merely concluded that the defendant's
excellent employment history, solid community ties, and consistent
efforts to lead a decent life in the adverse environment of an Indian
reservation were "sufficiently unusual" to constitute grounds for a
departure. Id. at 1332.
/4/ Contrary to petitioners' contention, Pet. 20, the bank
president's recommendation of clemency did not constitute a proper
independent ground to justify the departures. As the court of appeals
explained, Pet. 13-14, the bank president's letter recommended
leniency based on such factors as petitioners' employment history,
community support, prompt restitution and family responsibilities,
which were already taken into account by the Sentencing Guidelines.
For that reason, petitioners' reliance, Pet. 20, on United States
v. Pipich, 688 F. Supp. 191 (D. Md. 1988), is misplaced. In that
case, the court merely held that a defendant's exemplary military
service justified a downward departure because the Sentencing
Guidelines do not explicitly take into consideration a person's
military record. Id. at 192-193. In any event, we note that the
Eighth Circuit recently ruled that a defendant's military record does
not constitute an unusual circumstance justifying a departure where
the military service "is not meaningfully distinguishable from the
work history of steadily employed individuals holding responsible
positions in the civilian work force." United States v. Neil, 903 F.2d
564, 566 (8th Cir. 1990).
/5/ In part, 18 U.S.C. 3742(e) provides:
The court of appeals shall give due regard to the opportunity of
the district court to judge the credibility of the witnesses,
and shall accept the findings of fact of the district court
unless they are clearly erroneous and shall give due deference
to the district court's application of the guidelines to the
facts.
That provision was added as part of the Anti-Drug Abuse Act of 1988,
Pub. L. No. 100-690, Tit. VII, Section 7103(a)(7), 102 Stat. 4417
(1988). The legislative history of that provision explains its
purpose as follows:
This standard is intended to give the court of appeals
flexibility in reviewing an application of a guideline standard
that involves some subjectivity. The deference due a distirict
(sic) court's determination will depend upon the relationship of
the facts found to the guideline standard being applied. If the
particular determination involved closely resembles a finding of
fact, the court of appeals would apply a clearly erroneous test.
As the determination approaches a purely legal determination,
however, the court of appeals would review the determination
more closely.
134 Cong. Rec. H11257 (daily ed. Oct. 21, 1988).